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By Jarrett Murphy | April 24, 2006
You've got to fight for your right to party—or at least to possess spray paint or a permanent marker—and so designer Mark Ecko is suing Mayor Bloomberg, the city, and his old nemesis Queens Councilman Peter Vallone, Jr., in federal court. The claim is that Vallone's 2005 anti-graffiti bill violates the First Amendment by barring the sale of "an aerosol spray paint can, broad tipped indelible marker or etching acid to any person under twenty-one years of age," and preventing people under 21 from possessing those items "on the property of another or in any public building or upon any public facility." Mayor Bloomberg signed the measure into law late last year along with two other measures aimed at graffiti, part of a citywide crackdown on illegal defacement that includes an NYPD reward offer of $500 "for the arrest and conviction of anyone who commits graffiti vandalism."
The Ecko plantiffs are seven young artists, and their lawyer is Daniel Perez, Ron Kuby's law partner, who also represents several animal rights activists in a suit against the NYPD. The New York Civil Liberties Union says it backs the litigation. While the NYCLU stresses that it "offers no brief in support of illegal graffiti," the union says the Vallone law "sweeps far too broadly," and revs up the What-If machine:

. . . imagine if, during the days when seditious libel was regarded as unprotected expression, the government, in order to deter seditious publications, made possession of a printing press unlawfulunless the possessor of the printing press could affirmatively prove at trial that the printing device would be used for a lawful purpose. Or suppose that in an effort to deter the creation of constitutionally unprotected pornography, the government were to make the possession of a video camera unlawful unless the possessor of the camera could, affirmatively prove, in response to a criminal prosecution, that the camera would be used for a lawful purpose. We would commonly recognize such government over-reaching as constitutionally impermissible.

As chairman of the public safety committee, and a possible contender for Queens District Attorney at some future date, the chance to wage a law-and-order fight against Ecko and other graffiti artists isn't bad news for Vallone. Nor is this federal lawsuit the first round. Ecko and the councilman clashed last summer over the permit for a graffiti-themed street fair. Then a graffiti artist known as Cope2 left profane phone messages for Vallone, posing the tough questions, like "What is your fucking problem, bro?" In a statement Monday, Vallone said, "This isn't about student art projects, this is about corporate profits. The sole purpose of the lawsuit is to promote his video game, which teaches kids to commit a crime." He contends that his law "strikes a balance between first amendment rights and the public's right to keep their property free of graffiti."